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12 held " that the provisions of a statute, requiring the clerk of the district to give notice of the annual meetings, were merely directory, and that the proceedings of the meeting were valid although no notice was given." The averments of uncertainty and irregularity made in the- 14th, 15th, 16th and 17th paragraphs (on the 7th page) of the memorial, are of the same character as the last, herein noticed, and to be governed by the same rules of construc- tion,—'they are simple omissions or mistakes in the discharge of a duty only directed, not commanded, to be done by the statute. In the opinion of the Committee, the evidence docs not sustain the averment of the 18th paragraph on the same page of the memorial. The charges of uncertainty and irregularity made in the 19th, 20th, 21st, 22d, 23d and 24th paragraphs on the 8th page of the memorial, are also of the same character as those of the 14th, 15th, 16th and 17th paragraphs, and subject, like them, to the same rules of con- struction, as omissions or mistakes by a public officer in the performance of a duty directed to be done in a particular manner or at a particular time. In relation to all such irregularities or omissions of duty, the rule known and well settled by repeated decisions, is distinctly laid down in the case of Holland vs. Osgood, (8th Vermont Rep. 2SO,) " that Statutes directing the mode of proceeding by a public officer are directory and are not to be regarded as essential to the validity of the proceeding.-; them- selves, unless it, be so declared in the statute." Under this rule, it was decided in the case of Pond vs. Negus, (3 Muss. R. 230.) that, '"when the assessors of a school district were directed by the statute, to assess the district tax within thirty days after the district clerk had certified the vote for raising the tax, it was held to be merely directory, as there were no negative words in the statute limiting their power to make the assessment afterwards. In ex parte, Heath and Roome, (3 Hill: 43,) the general rule is again laid down, " that where a statute requires an official act to be done by a given da; /, for a public purpose, it shall be considered merely directory in regard to the time; and it was accordingly held, in that case, 11 that when the statutes required ward inspectors of the city of New York to certify the result of the ward. elections on the day subsequent, to the closing of the polls, or sooner, that their certificate was valid, although not made out till the second day after the closing of the polls." Recognizing the- some rule, in the case of The People vs. Peck, (11th Wend. 601 ) before referred to, it was held, " that a certificate of the; election of trustees may be received in evidence in a suit testing the validity of their election, although the statute directs the same to be made out immediately, and it be not made out till many months after." |
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Proceedings and Acts of the General Assembly, 1866
| Volume 107, Page 1808 View pdf image (33K) |
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